State v. Yates

• Decision Date: 12 September 1908
• Citation: 104 Me. 360,71 A. 1018
• Parties: STATE v. YATES et al.
• Court: Maine Supreme Court

71 A. 1018

104 Me. 360

STATE

v. YATES et al.

Supreme Judicial Court of Maine.

Sept. 12, 1908.

(Official.)

Report from Supreme Judicial Court, York County.

Frederick C. Yates and others were indicted for creating a nuisance by obstructing a way. Defendants pleaded not guilty, and an agreed statement of facts was then filed, and the case reported to the law court for decision. Judgment for the state.

Indictment for creating a nuisance by obstructing a way at Old Orchard, York county. The indictment contains two counts. The first count charges that the defendants "on the first day of October in the year of our Lord one thousand nine hundred seven, at Old Orchard, in said county of York, did unlawfully and injuriously erect, maintain, and continue a nuisance, to wit, a certain platform attached to the Old Orchard pier which obstructed a certain public highway known as Old Orchard street, in said Old Orchard." The second count charges that the defendants "on the first day of October, A. D. 1907, did unlawfully and injuriously erect and build and cause to be erected and built in and upon the lower easterly side of said Old Orchard street a certain wooden structure, to wit, a platform, thereby obstructing said highway and endangering travel thereon, and thereby erecting, maintaining and continuing a nuisance against the peace of said state, and contrary to the form of the statute in such ease made and provided." The defendants pleaded not guilty. An agreed statement of facts was then filed, and by agreement the case was reported to the law court for decision.

The material facts are stated in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and BIRD, JJ.

Frederick A. Hobbs, Co. Atty., for the State.

George F. & Leroy Haley, for defendants.

SAVAGE, J. The defendants stand indicted for creating a nuisance by obstructing a way. The case comes up on report. It appears that in 1871 a way, known as Old Orchard street, was laid out in Old Orchard, beginning "at the north corner of Ebenezer C. Staple's field, thence running south 41 degrees 15 minutes east 76 rods or to high-water mark." The street was built, and has since been constantly used, by the public. At the time the street was laid out it was exactly 76 rods from the point of beginning to high-water mark on Old Orchard beach. This street was connected with the sea, which is a great natural highway. But since 1871 high-water mark at this point in Old Orchard has been moved by accretions about 88 feet seaward. The defendants own a lot of land on the shore bounded westerly by Old Orchard street. They claim to own the fee to the center of the street, and we assume that they do own it. The obstruction complained of is on the 88-foot strip of land made by accretion since 1871, and is in front of that half of the way as originally laid out, of which the defendants claim the fee.

It is settled law that the owner of land bordering on a stream, a lake, or the sea, which is added to by accretion—that is, by the gradual and imperceptible accumulation or deposit of land by natural causes—becomes thereby the owner also of the new made land. It follows that the defendants owning to the center of the street as originally described have gained title by accretion to so much of the added land as lies in front of their half of the street, and that the obstruction is on land of which they own the fee. Banks v. Ogden, 2 Wall. 57, 17 L. Ed. 818. So far there is no controversy.

But the state contends that as far and as fast as the ground in front of high-water mark as it was in 1871 has been added to by accretion, so far and so fast has the public easement extended seaward by operation of law, that the definite terminus of the street in 1871 was "high-water mark," and that it continued to be and is now at "high-water mark," wherever that may be. In short, it is contended that the end of the street has kept pace with the receding high-water mark, and hence that the locus of the obstruction is within the street. We think that this contention must be sustained.

The cases involving this precise question are very few, if there are any, but the trend of judicial thought appears in many decided cases, some of which we cite. In People v. Lambier, 5 Denio (N. Y.) 9, 47 Am. Dec. 273, the court said that in case of accretions from natural causes, while the alluvial additions would become the property or the owner of the land against which the deposit is made, "it would hardly admit of a question that in such a case a public street leading to navigable waters would keep even pace with the extension of the land so as to preserve an unbroken union between the easement on land and that on such navigable waters." This expression was doubtless a dictum when used, but it was restated and approved by the same court in Mark v. Village of West Troy, 151 N. Y. 453, 45 N. E. 842. In the last-named case the court stated specifically that the rule held good "whether the change in the land be due to natural causes, or to the voluntary act of the owner of the land." In Newark Lime & Cement Mfg. Co. v. Mayor and City Council of Newark, 15 N. J. Eq. 64, where a highway had been laid out to a river as determined at the trial by a survey, the court said: "The survey...